Chap. I.

ness. But if the opposition is substantial, and such as would be likely to result in petitions being presented against the confirming Act, it will be expedient for him to proceed at once by private Bill, and so avoid the preliminary inquiry on a Provisional Order before the Board of Trade. He will also proceed by private Bill if his scheme involves matters which it is not within the practice or the powers of the Board to authorise, or which he thinks they would not be likely to authorise, by Provisional Order.

If he adopts either of the first two modes of procedure, he must remember that he is subject to the provisions of Tramways Act, 1870; that absence of consent on the part of the local authorities must prove fatal to his scheme, except where, in the case of a private Bill, the Standing Order relating to such consent is dispensed with; and that powers for the compulsory purchase of land cannot be given by a Provisional Order. He does not, however, now labour under the old difficulty with regard to compulsory purchase by local authorities, inasmuch as the Board of Trade and Parliament now usually vary the provisions of sect. 43 of Tramways Act, 1870, so as to extend the date of purchase and to impose more reasonable terms of payment, particularly where the scheme involves a large expenditure. But, in the case of Provisional Orders, he is still hampered by the "9 ft. 6 in." rule under sect. 9 of the Act, and, in the case of private Bills, by the same rule embodied in the Standing Orders, unless these Orders are dispensed with in the particular case.

If, then, the local authorities consent, or their consent is likely to be dispensed with by Parliament, and if the other difficulties which arise under the Tramways Act, 1870, do not trouble him, and if it seems probable that the scheme contains matters which would not be authorised by a Light Railway Order, or is such a scheme as the Light Railway Commis

sioners would refuse to deal with, or as the Board of Chap. I. Trade would deem suitable for Parliament under sect. 9 of Light Railways Act, 1896, then the promoter will proceed by private Bill.

But if the consent of the local authorities cannot be obtained, or can only be obtained on extravagant terms, yet the scheme receives strong local support, or is of obvious public benefit, so that the Commissioners and the Board of Trade would be likely to override the dissent of the local authorities, then it will be advisable to apply for a Light Railway Order. And, generally, the procedure under Light Railways Act, 1896, should be adopted wherever it is feasible. It is cheap, it is expeditious, and, above all, it is subject to no restrictions other than those which the Commissioners and the Board see fit to impose. Restrictions imposed by a public body to meet the circumstances of a particular case cannot fail to be less onerous than those imposed by general legislation.

CHAPTER II.

LOCUS STANDI.

A. Locus standi against Tramway Bills.

THIS portion of the subject has become of somewhat diminished importance since the passing of Light Railways Act, 1896, but it still remains important with regard to (a) Special Tramway Bills promoted directly in Parliament; (b) Provisional Orders for Tramways brought before Parliament for confirmation; (c) Proposals for Light Railways submitted to Parliament on the refusal of the Board of Trade to confirm an Order of the Light Railway Commissioners under Light Railways Act, 1896, s. 9 (3). Sect. 14 of Tramways Act, 1870, assimilates the principles of locus standi against special tramway Bills and against Bills for confirming Provisional Orders.

It is open to those who have a sufficient interest to oppose in Parliament any particular scheme, and to urge its rejection on the ground that the proposed line or lines would be so detrimental either to general traffic or to the interest affected as to outweigh any public advantage which would be gained by the construction of the tramway. The word "tramway" must be taken in this portion of the present work to include tramways proper and light railways of Class B (see ante, p. 7). There are no decisions at present on locus stundi with respect to Bills for light railways of Class A.

I. Of Railways.

(i) ON THE GROUND OF COMPETITION.

Standing Order 130 (post, p. 463) gives the Referees complete discretion as to the admission of petitioners to be heard on this ground, but the position of railways in relation to tramways is a very special one. Tramway promoters place their rails and run their carriages on a road already made, and the tramway, when made, does not deprive the public of property in the road, while in the case of a railway company a road has to be formed for the railway, which, when made, is used only for the purposes of the railway and is the property of the company for all purposes, subject to certain rights of the executive Government in times of emergency. This difference explains in a great measure the distinction which has been drawn and may (subject to the qualification mentioned below) be drawn in the future by the Referees with respect to the competition between a tramway and a railway and that created by one railway against another. The importance of this difference in connection with locus standi, however, while remaining considerable in the case of tramways which are worked by animal power, becomes much less where mechanical power is employed, and decreases more and more as the power employed, the speed, and other elements of successful competition become greater and greater. It may well be that in some cases the difference will vanish entirely, and it will be impossible to distinguish a tramway from a railway. Indeed, in countries where such matters are better understood than in the United Kingdom this has already happened.

The locus standi of railways on the ground of competition must therefore be discussed under two distinct heads:

(a) Where the tramways are to be worked by animal power. This portion of the subject is, happily, of

Chap. II.

Chap. II. little importance now; it may be confidently hoped that no more such tramways will be constructed on any considerable scale. Such tramways, running as they do on a road under or parallel to a railway, which the public and their vehicles have also a right to use, cannot be said to introduce a new and separate competition, as they would if they were railways, but rather to develop and add another element to an existing competition, of which, from the nature of the case, the railway company was never in a position to complain. In point of fact, the construction of such a tramway amounts, so far as the railway is concerned, to nothing more than the placing of a more commodious omnibus on the public road. The Court of Referees have therefore not thought the competition between such tramways and railways to be of such a character as to give the latter a locus standi against the former on the ground of competition. This point was decided as early as 1870, when a locus standi was refused to the London & North Western, the Metropolitan, and the North London Railways respectively, who petitioned to be heard on the ground of competition (a). The principle laid down in these cases as to metropolitan tramways would apply equally to other tramways. And it was held that no further right to a locus standi was given by the fact that the proposed line was intended for the carriage of goods or minerals, or that it was expressly constructed to admit the passage of vehicles used on railways (b).

may

Reference also be made to two Irish cases, in which it was held that the Irish Tramways Acts of

(a) North London Tramways Bill (1870), 2 Cl. & St. 82; London Street Tramways Bill (1870), 2 Cl. & St. 85; North Metropolitan Tramways Bill (1870), 2 Cl. & St. 89; followed in Tramways Orders (London Street Tramways Extensions, &c.) Bill (1871), 2 Cl. & St. 198, and Tramways Orders (London Street Tramways, Caledonian Road Extension) Bill (1871), 2 Cl. & St. 199.

(b) Glasgow, Coatbridge and Airdrie Tramways Bill (1872), 2 Cl. & St.